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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Thursday, October 14, 2010

Anti-religion vanity plate rule violates First Amendment

The Court of Appeals has struck down as unconstitutional the State of Vermont's scheme for issuing vanity license plates, ruling that it restricts religious expression in violation of the First Amendment.

The case is Byrne v. Rutledge, decided on October 8. Vanity plates generate a lot of money for the state because people are willing to pay a fee to broadcast their personalities to the world. In Vermont, there are limits to what your license plate can say, among them any combination of letters and numbers that would refer to a religion or deity. Apparatchiks in the Department of Motor Vehicles scrutinize the vanity applications to see if the plate is objectively or subjectively religious, which means that along with "JESUSLUVSU," a plate that means nothing to the average viewer is prohibited if the applicant wants it for religious reasons, or if DMV decides on its own that it has religious significance.

Even under the deferential nonpublic forum standard, this is process is not viewpoint neutral, and it therefore violates the First Amendment, the Court of Appeals (Livingston, Kearse and Raggi) holds, allowing Byrne to proceed with his plate that would read, JN36TN, another way of saying John 3:16. Under Supreme Court authority, "speech discussing otherwise permissible subjects cannot be excluded ... on the ground that the subject is discussed from a religious viewpoint." Since Vermont lets motorists put all sorts of philosophical messages on their license plates (such as CARP DM and PEACE2U) except for those expressing a religious philosophy or viewpoint, that exception violates the First Amendment.

The state also loses the case on a different ground: the rejection of Byrne's license plate is not reasonable because of the crazy way that it grants and denies applications. "[T]he state generally adopts the motorist's supplied meaning rather than the plate's objective meaning and, as a result, will (1) approve plates that, to the general public, appear to contain overt religious references simply because the motorist supplied a personal, secular meaning, and (2) deny applications for combinations that are objectively meaningless to third-party observers on the grounds that a registrant ascribes a personal religious meaning to the proposed plate." By way of example, the Court says, the state offers no rationale for how or why a presumably religious GENESIS plate will not distract other motorists or risk the public perception that the government is sponsoring a religious message simply because the driver is honoring his favorite rock group rather than the Old Testament.